Thursday, July 12, 2001

Felix subpoenas

Judge David Ezra rules that
lawmakers cannot subpoena
officials appointed by the U.S. court

By Treena Shapiro

The state Legislature does not have the authority to subpoena court-appointed officials to testify about the cost of meeting a federal mandate to educate special needs students in the public schools, U.S. District Judge David Alan Ezra ruled this morning.

A joint House-Senate committee investigating special education spending attempted to summon Ivor Groves, court-appointed monitor in the Felix case, and his assistant Juanita Iwamoto, to testify tomorrow morning.

"The state Legislature has attempted to subsume unto itself powers that even the federal Congress does not have," Ezra said. "I suspect and I hope that this was the result of a serious and unfortunate mistake and not simply an effort to create some sort of issue for publicity purposes."

As an officer of the federal court, Groves enjoys quasi-judicial immunity, which extends to Iwamoto.

Ezra said the subpoenas were "grossly overbroad" and would not be upheld in any case.

The judge added lawmakers risk finding themselves in contempt if there is any more "harassment" of Groves, Iwamoto or special master Jeff Portnoy in trying to obtain information.

Committee Co-chairman Rep. Scott Saiki (D, Moiliili-McCully-Ala Wai), said that he is awaiting Ezra's written ruling before deciding a new course of action, which could include an appeal.

"I think ideally we would like to question witnesses in person and under oath because we just want to get truthful testimony from our witnesses." Saiki said.

Ezra, who has threatened to take over the special education system if the state does not meet federal requirements, said he supports the legislative investigation and quashing the subpoenas was not an attempt to conceal information.

He adopted Portnoy's recommendation that the Legislature should receive information through written interrogation or meet with Portnoy and a federal attorney to find a way to obtain the necessary information.

While the federal court and the state Attorney General's Office have received no evidence of mismanagement of funds, "if there has been mismanagement that supports the plaintiff's argument for a takeover," Ezra said, pointing out that the plaintiffs are trying to prove that the state has not done what it should have done with its funds.

Ezra said that the legislators have little recourse and cannot appeal since they are not a party to the Felix case and would have a difficult time convincing a state judge to enforce the subpoenas.

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